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Procedural Posture: Plaintiff Delano Farms appealed the district court’s finding that two plant patents for varieties of table grapes were not invalid for public use more than one year before the applications for the patents were filed. CAFC affirmed.

Public Use: The CAFC rejected Appellant’s arguments that a third party’s possession of the plant material, the provisioning of the material to a cousin of the third party, and the subsequent cultivation of the unreleased plant material constituted public use. The CAFC found that the evidence showed that both the third party and the cousin know that they were not authorized to have the plants and that they understood that they needed to keep their possession of them confidential. The CAFC also found that disclosure of the possession by the cousins to another individual was not sufficient evidence that the cousins did not maintain secrecy since the other individual was a friend, business partner, and mentor to the cousins, and each had incentives to keep the existence of the plants secret. The CAFC further found that the cousins’ cultivation of the plants in locations that were visible from public roads was not sufficient to demonstrate public use since the plants were unable to be reliably identified simply by viewing them from the public roads.

Evidence: The CAFC concluded that since it had already determined that Appellant had failed to meet its burden of proof of public use, the CAFC did not need to address whether testimony from the cousins and the other individual was inadmissible for lack of corroboration.

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